Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

18 October 2016 (*)

(Community trade mark — Revocation proceedings — EU word mark Fruitfuls — Genuine use — Article 51(1)(a) and (2) of Regulation (EC) No 207/2009)

In Case T‑367/14,

August Storck KG, established in Berlin (Germany), represented by I. Rohr, A.-C. Richter, P. Goldenbaum, T. Melchert and T. Reher, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented initially by A. Poch, and subsequently by G. Schneider and D. Gája and finally by D. Gája, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervening before the Court being,

Chiquita Brands LLC, established in Charlotte, North Carolina (United States of America), represented by L. Bakers, lawyer,

ACTION against the decision of the Fifth Board of Appeal of EUIPO of 27 March 2014 (Case R 1580/2013-5), relating to revocation proceedings between Chiquita Brands and August Storck,

THE GENERAL COURT (Fourth Chamber),

composed of M. Prek, President, I. Labucka and V. Kreuschitz (Rapporteur), Judges,

Registrar: A. Lamote, Administrator,

having regard to the application lodged at the Court Registry on 28 May 2014,

having regard to the response of EUIPO lodged at the Court Registry on 10 October 2014,

having regard to the response of the intervener lodged at the Court Registry on 26 September 2014,

having regard to the decision of 8 January 2015 refusing to allow the lodging of a reply,

further to the hearing on 20 January 2016,

gives the following

Judgment

 Background to the dispute

1        On 19 February 2007 the applicant, August Storck KG, obtained from the European Union Intellectual Property Office (EUIPO) registration under number 5014519 of the EU word mark Fruitfuls pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2        The goods in respect of which registration of the contested mark was sought are in Class 30 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Confectionery, chocolate and chocolate goods, pastry’.

3        On 24 February 2012, the intervener, Chiquita Brands LLC, filed an application for revocation of the contested mark, pursuant to Article 51(1)(a) of Regulation No 207/2009, for all the goods for which it had been registered, alleging that the contested mark had not been put to genuine use in the European Union in connection with the goods within a continuous period of five years.

4        The applicant produced a number of documents intended to prove genuine use of the contested mark within the period prescribed by EUIPO for that purpose.

5        On 18 June 2013, the Cancellation Division upheld the application for revocation in its entirety on the ground that the documents submitted by the applicant did not prove genuine use of the contested mark during the relevant period.

6        On 14 August 2013, the applicant brought an appeal before EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Cancellation Division’s decision. In its written statement setting out the grounds for the action, the applicant produced additional documents intended to prove genuine use of the contested mark.

7        By decision of 27 March 2014 (‘the contested decision’), the Fifth Board of Appeal dismissed the action in its entirety. In particular, it found that:

–        the relevant period for which the applicant had to show genuine use of the earlier mark was the five years preceding the application for revocation, namely, the period from 24 February 2007 to 23 February 2012;

–        the first sales of the goods produced in Germany to end consumers in Slovenia began on 17 January 2012, at the very end of the relevant period;

–         Mr H.’s sworn statement concerning sales in Croatia and Kosovo was not supported by independent evidence, so that those sales had only a limited impact on the assessment of the extent of use; in any event, it is clear from that statement that sales in Croatia and Kosovo were made outside the relevant period;

–        the Cancellation Division rightly compared the quantity of goods sold by the applicant during the relevant period to sales made on the European confectionery market and concluded that the volume of sales made by the applicant was extremely low;

–        in the present case, in so far as the evidence consisted of only three deliveries to clients in a country in the European Union at the very end of the relevant period, it must be concluded that the applicant had not proved genuine use;

–        as regards the additional evidence submitted by the applicant for the first time before the Board of Appeal, it was not necessary to examine its admissibility given that, in any event, those documents were insufficient to support the evidence submitted before the Cancellation Division to establish genuine use of the contested mark; first of all, Mr K.’s sworn statement referred to the production of the goods in question in the applicant’s factory in Germany on three occasions of which only one, namely, that of 16 December 2011, was included in the relevant period; that one-off production at the very end of the relevant period was insufficient evidence of the extent of the use of the contested mark on the European confectionery market; second, the invoices concerning the sales in Slovenia were sent to recipients in various towns in Slovenia only at the end of the relevant period, namely from 5 January to 23 February 2012, and concerned rather insignificant individual quantities; third, that low volume of sales was neither explained nor offset by other evidence capable of showing, for example, a higher frequency of use over a longer period; fourth, even disregarding borders, the fact remains that the invoices submitted concerned a limited territory and a low volume of sales over a brief timespan which did not even amount to the last two months of the five-year period, which was quantitatively insufficient for the whole of the European Union; fifth, nothing in the file showed that, at the time of the launch as new goods, the applicant was confronted by legal or other obstacles to selling the goods covered by the contested mark; finally, sixth, the applicant has failed to produce evidence confirming the sales in Albania, Kosovo and in former Serbia and Montenegro;

–        overall, taking account, in particular, of the characteristics of the market in question, the nature of the goods covered by the contested mark and the extent and significance of the territory where the mark was used, it must be concluded that the contested mark was not put to genuine use during the relevant period.

 Forms of order sought

8        The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs, and, if Chiquita Brands intervenes in the proceedings, order the latter to bear its own costs.

9        EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs incurred by EUIPO. 

10      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 Admissibility of the evidence submitted by the applicant at the hearing

11      At the hearing, the applicant offered to add to the case file a sworn statement made by Mr B., head of the applicant’s legal department, and invoices relating to 2014 and 2015 as well, in order to prove that the volume of sales of the goods at issue had been increasing since 2012.

12      EUIPO and the intervener objected to those documents being added to the case file.

13      It suffices, in that regard, to bear in mind that, pursuant to Article 65(2) of Regulation No 207/2009, the General Court is called upon to assess the legality of the decisions of the Boards of Appeal of EUIPO by reviewing their application of EU law, having regard, in particular, to the facts which were submitted to them (see, to that effect, judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 38). In those circumstances, as it is not the Court’s function to review the facts in the light of documents produced for the first time before it, the evidence submitted by the applicant for the first time before it must, therefore, be rejected as being inadmissible (see, to that effect, judgments of 10 November 2004, Storck v OHIM (Shape of a sweet), T‑396/02, EU:T:2004:329, paragraph 24 and the case-law cited, and 24 November 2005, Sadas v OHIM — LTJ Diffusion (ARTHUR AND FELICIE), T‑346/04, EU:T:2005:420, paragraph 19 and the case-law cited).

 Substance

14      In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 51(1)(a) of Regulation No 207/2009. It argues that the Board of Appeal incorrectly considered that it had not adduced evidence of genuine use of the contested mark and puts forward five specific complaints to that effect.

15      By its first and second complaints, the applicant claims, in essence, that the proprietor of an EU trade mark is not obliged to demonstrate that it made genuine use of that mark during the entire five-year period laid down by the first paragraph of Article 15(1) of Regulation No 207/2009 and that the standard of proof is lower when it started to use the mark solely at the end of the ‘grace period.’ By its third complaint, the applicant criticises the Board of Appeal, in essence, for having compared the applicant’s volume of sales to sales on the confectionery market in the entire European Union, in order to conclude that the applicant’s volume of sales was extremely low. By the fourth complaint, the applicant criticises the Board of Appeal for failing to take account of a number of deliveries to its subsidiary in Slovenia and the sales in Croatia and Kosovo. By the fifth complaint, the applicant claims that the Board of Appeal wrongly failed to take account of Mr H.’s sworn statement, since it was very detailed, precise and supported by copies of invoices showing the truth of the sales figures presented.

16      EUIPO and the intervener dispute the applicant’s arguments.

17      In the present case, it is appropriate to examine in the first place the third complaint raised by the applicant.

18      By its third complaint, the applicant criticises the Board of Appeal, in essence, for comparing the volume of sales made by the applicant to sales on the ‘confectionery’ market in the entire European Union, in order to conclude that the applicant’s volume of sales was extremely low. The confectionery market is not a uniform market for all kinds of confectionery, but is divided into several branches. In the present case, the relevant market is the market for hard fruit candies. The use of the contested mark in Germany and Slovenia is sufficient to prove genuine use in the EU as a whole. It is normal business practice to introduce a new product into the market in only one or two countries at first. No high sales quantities are required for the use of a trade mark to be genuine.

19      EUIPO disputes the applicant’s arguments and points out that the evidence produced by the applicant relates almost exclusively to sales which concern a very limited territory and are of insignificant volume in view of the size of the relevant market. In the present case, the applicant has failed to show that the relevant market was more restricted than the Board of Appeal assumed. According to EUIPO, undertakings which produce hard fruit candies and undertakings which produce other confectionery are identical. The sales channels and the marketing are identical for all confectionery goods and the circumstances and motives for consumption of those goods are identical.

20      The intervener also disputes the applicant’s arguments and states that genuine use must be understood as the use of the contested mark on the market for goods and services covered by that mark. Therefore, the Board of Appeal was correct to compare the applicant’s sales to the confectionery market as a whole.

21      At the outset, it should be borne in mind that it follows from a combined reading of Article 51(1)(a) of Regulation No 207/2009 and Article 51(2) of that regulation that evidence of genuine use must in principle cover all of the goods or services for which a contested mark is registered. If the evidence of genuine use is adduced only in respect of part of the goods or services for which the contested mark is registered and if the other conditions laid down by Article 51(1)(a) of Regulation No 207/2009 are met, the rights of the proprietor of that mark may be declared to be revoked in respect of the goods or services for which it has not adduced evidence of genuine use or has even adduced no evidence of use at all.

22      In the present case, it is undisputed that the contested mark has been registered for ‘confectionery, chocolate and chocolate goods, pastry’ in Class 30. Nor is it disputed that the evidence produced by the applicant to prove genuine use of the contested mark concerns a single type of ‘confectionery’, namely ‘hard fruit candies’.

23      The Board of Appeal, initially, examined, in paragraphs 23 to 28 of the contested decision, the evidence of use submitted by the applicant before the Cancellation Division. In particular, the Board of Appeal stated, in paragraph 25 of the contested decision, that the invoices for sales to Slovenia showed rather scant use of the contested mark and fully endorsed the analysis of the evidence set out in paragraph 32 of the decision of the Cancellation Division. The latter had noted that, relative to the enormous size of the European confectionery market taken as a whole, the volume of sales shown by the applicant was extremely low and that, given the price and value of confectionery in general, a significant volume was necessary in order to create and maintain market share. In the present case, the low volume of sales was not justified or compensated by other evidence, in particular, a higher frequency of use over a longer time.

24      Second, as regards the evidence of use submitted by the applicant at the stage of the appeal before the Board of Appeal, the Board found, at paragraph 31 of the contested decision, that there was no need to rule on the admissibility of those documents, since, in any event, those documents were prima facie insufficient to corroborate the evidence filed before the Cancellation Division. It stated, in paragraph 34 of the contested decision, that the goods in question were produced during the relevant period on only one occasion, namely, 16 December 2011, at the very end of that period, which was insufficient proof as regards the scale of the use of the mark in the confectionery market within the European Union. Concerning the invoices submitted by the applicant, the Board of Appeal considered, in paragraphs 35 to 37 of the contested decision, that they concerned sales at the end of the relevant period, namely from 5 January 2012 to 23 February 2012, in Slovenia only. The quantities in units sold were rather insignificant and the sales prices were cancelled out from the invoices. The low volume of sales was neither explained nor compensated by other evidence which could show, for example, a higher frequency of use over a longer time period. Concerning the territorial extent of use, the Board of Appeal considered, in paragraphs 38 and 39 of the contested decision, that it was only one factor having to be taken into account in the determination of whether that use was genuine or not. Although it was appropriate to disregard borders, it was not unreasonable to conclude that the invoices submitted concerned a limited territorial extent, namely only Slovenia and possibly the place of production of the goods in question in Germany, and a low sales volume over a very short period of time not even corresponding to the last two months of the relevant period of five years. According to the Board of Appeal, for the whole European Union, that was quantitatively insignificant, since, given the relatively low standard price of candies and confectionery goods in general, a significant volume of sales was usually necessary in order to create and maintain an effective market share. The relevant market was considerable, since, first, the relevant public for the goods at issue was the public at large throughout the entire European Union and, second, most of the confectionery items were sold through supermarkets, convenience stores and drug stores. Account being taken of the large scale of the confectionery market, the evidence produced by the applicant as regards the extent of such use was not sufficient to establish genuine use.

25      Accordingly, it follows from the contested decision that the Board of Appeal merely compared the sales of a specific type of hard fruit candies, namely candies portraying the contested mark, in a single EU Member State, on the one hand, with the production volume of confectionery, of all types, and the turnover generated in that sector in the entire European Union, on the other.

26      For the purposes of assessing the merits of the third complaint, it is therefore appropriate to determine whether the Board of Appeal was right to compare the applicant’s sales of ‘hard fruit candies’ with the market volume of ‘confectionery’ in the entire European Union and, more particularly, whether the Board of Appeal could lawfully make that comparison by linking the sales made by the applicant in Slovenia, and possibly also the production volume of the goods at issue in Germany, with the market volume in the entire European Union.

27      In the first place, as regards determining whether the Board of Appeal was right to make a comparison of sales between, on the one hand, the ‘hard fruit candies’, and, on the other, ‘confectionery’, according to the case-law, if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub-categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection only for the sub-category or sub-categories to which the goods or services for which the trade mark has actually been used belong (see judgment of 10 December 2015, Sony Computer Entertainment Europe v OHIM — Marpefa (Vieta), T‑690/14, not published, EU:T:2015:950, paragraph 61 and the case-law cited).

28      However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition (judgments of 14 July 2005, Reckitt Benckiser (España) v OHIM — Aladin (ALADIN), T‑126/03, EU:T:2005:288, paragraph 45, and 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 23).

29      While the principle of partial use operates to ensure that trade marks which have not been used for a given category of goods are not rendered unavailable, it must not result in the proprietor of the earlier trade mark being stripped of all protection for goods which, although not strictly identical to those in respect of which he has succeeded in proving genuine use, are not in essence different from them and belong to a single group which cannot be divided other than arbitrarily. It must be observed in that regard that, in practice, it is impossible for the proprietor of a trade mark to prove that the mark has been used for all conceivable variations of the goods concerned by the registration. Consequently, the concept of ‘part of the goods or services’ cannot be taken to mean all the commercial variations of similar goods or services but merely goods or services which are sufficiently distinct to constitute coherent categories or sub-categories (judgments of 14 July 2005, ALADIN, T‑126/03, EU:T:2005:288, paragraph 46; 13 February 2007, RESPICUR, T‑256/04, EU:T:2007:46, paragraph 24, and 10 December 2015, Vieta, T‑690/14, not published, EU:T:2015:950, paragraph 62).

30      It is therefore necessary to consider whether the ‘hard fruit candies’ constitute a coherent sub-category which may be considered autonomously in relation to ‘confectionery’, or whether those goods are part of a single group of goods designated by the word ‘confectionery’, where division into sub-categories would be arbitrary.

31      If it is established that ‘hard fruit candies’ constitute such a coherent sub-category which may be considered autonomously in relation to ‘confectionery’, it follows that the evidence of use with regard to ‘hard fruit candies’ cannot, in any event, prove genuine use of ‘confectionery’ as a whole. In contrast, if it is established that the ‘hard fruit candies’ do not constitute such a coherent sub-category which may be considered autonomously in relation to ‘confectionery’, the applicant cannot be required, pursuant to the case-law cited in paragraph 29 above, to adduce the evidence of the use of the contested mark for all other conceivable variations of goods falling within in the category of ‘confectionery’, since it would in practice be impossible for the applicant to do so.

32      As regards the question whether the goods are part of a coherent sub-category which may be considered autonomously, it follows from the case-law that, in so far as consumers are searching primarily for a product or service which can meet their specific needs, the purpose or intended use of the product or service in question is vital in directing their choices. Consequently, inasmuch as consumers do employ the criterion of the purpose or intended use before making any purchase, it is of fundamental importance in the definition of a sub-category of goods or services (judgments of 13 February 2007, RESPICUR, T‑256/04, EU:T:2007:46, paragraph 29, and 16 May 2013, Aleris v OHIM — Carefusion 303 (ALARIS), T‑353/12, not published, EU:T:2013:257, paragraph 22). In contrast, the nature of the goods at issue and their characteristics are not, as such, relevant to the definition of sub-categories of goods or services (see, to that effect, judgments of 13 February 2007, RESPICUR, T‑256/04, EU:T:2007:46, paragraph 31, and 16 May 2013, ALARIS, T‑353/12, EU:T:2013:257, paragraph 23).

33      In the present case, the applicant correctly puts forward that the point in common of ‘confectionery’ is that it all is sweet. The purpose of confectionery is to be consumed for enjoyment, not to meet nutritional needs.

34      However, according to the applicant, there are huge differences between the different types of ‘confectionery’, so that, from the point of view of end consumers, ‘hard fruit candies’ are not interchangeable with other types of ‘confectionery’.

35      In that regard, first, it should be recalled that it follows from the case-law cited in paragraph 32 above that the decisive criterion for defining sub-categories of goods or services is the purpose and intended use of the goods at issue and that the nature and characteristics of those goods is irrelevant. It follows that, even if the nature or characteristics of different types of goods are so different that, from the point of view of the end consumer, they are not interchangeable, the fact remains that, to constitute a separate sub-category of goods within the meaning of the case-law cited in paragraphs 27 to 29 above, it is necessary that their purpose or intended use be different. Accordingly, the applicant’s argument that ‘hard fruit candies’ are not interchangeable with other types of ‘confectionery’ is not sufficient, by itself, for it to be concluded that the ‘hard fruit candies’ constitute a separate sub-category of goods in relation to ‘confectionery’.

36      Second, as regards the applicant’s argument that the texture and taste of ‘hard fruit candies’ is very different from those of other types of ‘confectionery’, it suffices to state that the texture and taste constitute precisely the characteristics of the goods at issue.

37      Third, in so far as the applicant claims that there are differences between the different types of ‘confectionery’ as regards shelf life and requirements concerning storage, for example, being kept cool, which are particularly important for retailers, and that the different types of ‘confectionery’ may require different distribution channels and have different marketing requirements, it bases its argument not on the purpose or intended use of the goods at issue, but rather on their nature and their characteristics and therefore on criteria that are irrelevant for the purposes of defining sub-categories of goods or services.

38      Fourth, the applicant’s arguments that relate to comparisons with chocolate bars and chocolate are also irrelevant. Those goods do not fall within the category of ‘confectionery’, but rather that of ‘chocolate and chocolate goods’, for which the contested mark is also registered. They cannot therefore constitute a sub-category of ‘confectionery’.

39      It follows that the applicant has failed to demonstrate that ‘hard fruit candies’ constitute a separate sub-category for the purposes of the case-law cited in paragraphs 27 to 29 above in relation to ‘confectionery’, since such a division of the latter category would be arbitrary.

40      In those circumstances, as has been noted in paragraph 31 above, it follows from the case-law cited in paragraphs 28 and 29 above that any proof of genuine use for such type of goods coming within the category of ‘confectionery’, while not constituting a separate sub-category, necessarily covers the entire category of ‘confectionery’. As was recalled by that case-law, the proprietor of a trade mark cannot be required to adduce the evidence of its use for all conceivable variations of goods coming within in the category of ‘confectionery’. Given that it is in practice impossible for a proprietor of a trademark to adduce the evidence of its use for all conceivable variations of goods coming within the product category in question, in the present case, the Board of Appeal was wrong merely to compare sales of a specific type of hard fruit candies, namely candies showing the contested mark, on the one hand, with the production volume of confectionery, of all types, and the turnover in this sector in the entire European Union, on the other. In doing so, the Board of Appeal imposed an excessive burden of proof contrary to the spirit of the case-law cited in paragraphs 27 to 29 above.

41      In the second place and in any event, it is appropriate to determine whether the Board of Appeal was right to carry out such an assessment of the applicant’s volume of sales compared to the volume of the market for ‘confectionery’ in the entire European Union.

42      As regards the territorial extent of the use, it follows from the case-law that if it is, admittedly, reasonable to expect that an EU trade mark should be used in a larger area than a national mark, it is not necessary that the mark should be used in an extensive geographic area for the use to be deemed genuine (judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 54).

43      In addition, in the interpretation of the notion of genuine use, account must be taken of the fact that the ratio legis for the requirement that the mark at issue must have been put to genuine use is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (see judgments of 24 May 2012, TMS Trademark-Schutzrechtsverwertungsgesellschaft v OHIM — Comercial Jacinto Parera (MAD), T‑152/11, not published, EU:T:2012:263, paragraph 18 and the case-law cited, and 15 July 2015, TVR Automotive v OHIM — TVR Italia (TVR ITALIA), T‑398/13, EU:T:2015:503, paragraph 45 and the case-law cited).

44      According to the case-law, there is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services, excluding token use for the sole purpose of preserving the rights conferred by the mark (see, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, ECR, EU:C:2003:145, paragraph 43). Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly (see judgments of 6 October 2004, Vitakraft-Werke Wührmann v OHIM — Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 26 and the case-law cited, and 4 July 2014, Construcción, Promociones e Instalaciones v OHIM — Copisa Proyectos y Mantenimientos Industriales (CPI COPISA INDUSTRIAL), T‑345/13, not published, EU:T:2014:614, paragraph 21 and the case-law cited).

45      In the present case, it is clear that the Board of Appeal, in paragraph 39 of the contested decision, merely stated that it was appropriate to disregard the Member States’ territorial borders in order to assess the existence of genuine use for the purposes of making a schematic comparison of the applicant’s sales in Slovenia, and possibly also of the production volume of the goods at issue in Germany, with the market volume in the entire European Union.

46      Accordingly, the Board of Appeal favoured a method of reasoning which tended to underestimate the relative scale of the applicant’s sales, without providing specific justification as to the necessity of assessing the genuine use of the earlier mark in relation to all sales of confectionery in the European Union.

47      It must be held that such reasoning does not enable it to be understood and assessed whether the Board of Appeal reasonably considered whether the earlier mark had been used in accordance with its essential function, which is to guarantee the identity of the origin of the goods for which it is registered, or, on the contrary, was guided by an incorrect consideration intended to limit trade mark protection to large-scale commercial use.

48      Thus, the Board of Appeal erred in law, not only by comparing the applicant’s sales of ‘hard fruit candies’ with the market volume of ‘confectionery’ as a whole, but also by comparing the sales made by the applicant in Slovenia, and possibly the production volume of the goods at issue in Germany, with the market volume in the entire European Union.

49      It follows that the third complaint and, therefore, the applicant’s sole plea in law is well founded as regards ‘confectionery’ and the contested decision must therefore be annulled in so far as it confirmed the decision of the Cancellation Division declaring the revocation of the contested mark as regards ‘confectionery’.

50      On the other hand, given that it is undisputed that the applicant has not produced any evidence of use of the contested mark in respect of ‘chocolate and chocolate products, pastry’ and that in any event, its sole plea in law is therefore unfounded in respect of those goods, it is necessary to dismiss the remainder of the action.

51      Consequently, it is no longer necessary to examine the other complaints raised by the applicant in the context of its single plea in law.

 Costs

52      Under Article 134(3) of the Rules of Procedure of the General Court, each party is to bear its own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.

53      In the present case, as the applicant has been unsuccessful as regards ‘chocolate and chocolate goods, pastry’ and EUIPO and the intervener have been unsuccessful as regards ‘confectionery’, each party must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 March 2014 (Case R 1580/2013-5) in so far as it confirmed the decision of the Cancellation Division declaring the revocation of the contested mark as regards ‘confectionery’ included in Class 30 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended;

2.      Dismisses the remainder of the action;

3.      Orders each party to bear its own costs.

Delivered in open court in Luxembourg on 18 October 2016.

[Signatures]

* Language of the case: English.

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